Kimathi and Tucker v Attorney-General for Bermuda and ors

• Jurisdiction: Bermuda
• Judgment Date: 28 April 2017
• Date: 28 April 2017
• Docket Number: Civil Jurisdiction 2016 No 312
• Court: Supreme Court (Bermuda)

[2017] Bda LR 40

In The Supreme Court of Bermuda

Civil Jurisdiction 2016 No 312

In the matter of an application for Judicial Review

And in the matter of the Bermuda Immigration and Protection Act 1956

And in the matter of the Bermuda Constitution Order 1968

And in the matter of the Human Rights Act 1981

Between:

Ayo Kimathi

David Tucker

Applicants

and

Attorney-General for Bermuda

Minister for Home Affairs

Executive Officer of the Human Rights Commission

Respondents

Mr E Johnston and Mrs D Johnston for the Applicants

Mrs L Sadler-Best for the 1^st & 2^nd Respondents

Mr A Doughty and Ms G Tucker for the 3^rd Respondent

The following cases were referred to in the judgment:

TN Tatem PTA v Commissioner of Education [2012] Bda LR 48

Minister of Home Affairs v Fisher [1980] AC 319

Director of Public Prosecutions v Hutchinson; Smith [1988] UKHL 11

Myrie v Barbados [2013] CCJ 3

Minister for Immigration v Nettlefield [2003] ECSC J-01 28–8

Re Bar-Am et al [1986] Bda LR 14

Attorney-General for the Dominion of Canada v Cain [1906] AC 542

Wheeler v Leicester City Council [1985] AC 1054

Cashman v Parole Board [2010] Bda LR 45

R v Home Secretary, ex parte Simms [2000] 2 AC 115

R v Lyons [2003] 2 AC 115

Grape Bay Limited v Attorney General [2000] 1 WLR 574

R (Farrakhan) v Secretary of State for the Home Department [2002] QB 1391

R (on the application of Naik) v Secretary of State for the Home Department [2011] EWCA Civ 1546

Cox v Turkey (2012) 55 EHRR 13

Abdulaziz, Cabales and Balkandali v United Kingdom (1985) 7 EHRR 471

Richardson v Raynor (Police Sergeant) [2011] Bda RL 52

Centre for Justice v Attorney-General [2016] Bda LR 82

Perincek v Switzerland (2016) 63 EHRR 6

R v Keegstra [1990] SCR 697

Jersild v Denmark ECHR 15890/89

Ustun v Turkey ECHR 37685/02

Vejdeland v Sweden (2012) ECHR 242

Andare v Attorney-General [2016] eKLR

Saskatchwan Human Rights Commission v Whatcott [2013] 1 SCR 467

Gerger v Turkey [1999] ECHR 46

Battiston v Grant [2016] Bda LR 62

Apex Construction Management and ors v Grant [2015] Bda LR 37

R v Zundel [1992] 2 RCS 731

AfriForum v Malema [2011] ZAEQC 2

Judicial review — Legality of decision by minister to ban foreign lecturer from entering Bermuda — Hate speech — Legality of decision of Executive Officer of Human Rights Commission to refer complaint to tribunal — Constitutional rights to freedom of expression and freedom of conscience

JUDGMENT of Kawaley CJ

INDEX

Topic	Paragraph number(s)
Introductory	1–6
The controversial statements in outline	7
The Minister's Response	8–12
The Executive Officer's Response	13–15
The Applicants' legal action	16–21
Preliminary views on the primary purpose and function of the fundamental rights and freedoms provisions in the Bermuda Constitution	22–28
Did the Minister possess the requisite statutory power?	29–31
The statutory power to place persons on the stop list	32–45
Was the predominant purpose of the Decision an unlawful one and/or contrary to the common law principle of equality and the rule of law and/or where the Applicants discriminated against on the grounds of their political beliefs?	46–48
Legal findings: is the 1st Applicant entitled to relief under the Bermuda Constitution despite his absence from Bermuda?	49–60
Legal findings: the test for demarcating the boundary Between protected and unprotected free speech under section 9 of the Bermuda Constitution	61–85
Findings: did the Minister interfere with the Applicants' freedom of expression rights under section 9(1) of the Constitution?	86–87
Findings: was the interference with the 1st Applicant's freedom of expression rights by the Decision “reasonably required” within section 9(2)(a) of the Constitution?	88–113
Findings: did the Minister interfere with the Applicants' freedom of conscience rights under section 8(1) of the Constitution?	114–119
Findings: are the Applicants entitled to an Order of certiorari quashing the Executive Officer's decisions?	120–161
Findings: are the Applicants entitled to a declaration that section 8A(1) of the HRA is inconsistent with sections 8 and/or 9 of the Constitution?	162–187
Conclusion	188–193

Introductory

1. The present application, despite its various narrower strands, raises one central legal question. Did the impugned statements made by the 1st Applicant, which were undoubtedly offensive to persons of European descent and homosexuals, arguably cross the boundaries of constitutionally protected free speech into the domain of legally unprotected ‘hate speech’? It was common ground that the Bermudian Constitution protects freedom of expression sufficiently broadly to make it impermissible for the State to punish or sanction the expression of opinions which are merely controversial, offensive or even shocking.

2. Mr Johnston colourfully opened and closed his submissions in the present case with recitations which have surely not been heard in this Court before. He began with references to Dutty Boukman's role in the Haitian Revolution and Bermudian-owned Denmark Vesey's role in a South Carolina slave uprising. He ended with a quotation from Aim�Cesaire's ‘Discourse on Colonialism’, having reminded me of my own observations in TN Tatem PTA v Commissioner of EducationBDLR[2012] Bda LR 48:

“25. Rose-Marie Belle Antoine has suggested the need for an activist approach for judges in societies with histories similar to our own:

“Just as the study of the English common law must examine the historical evolution of that law, so too must the study of West Indian law appreciate the birth of our own law grounded in slavery and colonialism. The legal thought processes and institutions will only have meaning when the historical perspective is understood…Because of this historical function of the law…the Caribbean man and judge has an active role to play in re-interpreting the legal framework to build a more… just society.’ The judge and legislator must perform the role of ‘social engineer’.”1

3. These allusions helped to set the wider contextual background for the comparatively narrow and focussed (yet complicated) legal questions which arise in the present case. The 2nd Applicant organized a lecture series called ‘African history and culture come alive’ in 2015 and obtained work permits for the 1st Applicant and a Professor James Small, both African-Americans, to speak at the Liberty Theatre in Hamilton on September 26, 2015. Statements made by the 1st Applicant at the public meeting were characterised by a Cabinet Minister in a newspaper article published on September 28, 2015 as ‘hate speech’.

4. In a decision memorialised on October 2, 2015, the 1st Respondent (the Hon Mr Michael Fahy, “the Minister”) placed the 1st Applicant on the ‘stop list’ with effect from September 28, 2015.

5. Also on September 28, 2015, Mr Harold Conyers filed a complaint (“the Complaint”) with the Human Rights Commission (“the HRC”) against the Applicants in relation to the same statements made at the September 26, 2015 meeting. The Complaint was formalized by the 3rd Respondent (“the EO”) on December 17, 2015. The Applicants' counsel asserted that (a) the Complaint interfered with his clients' constitutional rights, and (b) that no arguable breach of the Human Rights Act 1981 (“the HRA”) was disclosed on the face of the Complaint and declined to engage with the EO's mediation requests. By letter dated August 2, 2016, the EO notified the Applicants that the Complaint had been referred to the Chairman of the HRC for adjudication by a Tribunal on its merits.

6. By Notice of Application dated August 12, 2016, the Applicants sought leave to seek judicial review of the Minister's decision to place the 1st Applicant on the “stop list” pursuant to section 31(5) of the Bermuda Immigration and Protection Act 1956 (“BIPA”) and the EO's decisions to investigate and refer the Complaint to a Tribunal. By Order dated August 29, 2016, I granted leave to seek judicial review and stayed the prosecution of the HRC Complaint. By Notice of Motion dated September 12, 2016, the Applicants formally sought the relief set out in their Notice of Application for Leave on the grounds set out in the same document.

The controversial statements in outline

7. The Court was supplied with a DVD video recording of the 1st Applicant's entire lecture. The most explicitly offensive remarks were few and far between and came mainly towards the end of the presentation. However, two broad conclusory theses were unequivocally advanced on the foundation of a sweeping and emotive multi-media presentation:

• i. The problem: white people were today pushing a homosexual agenda, a genocidal agenda, which was a modern version of the violence perpetrated

  during the slave era to subjugate black men and women and strip them of their culture, identity and dignity. Images of effeminized black men were being widely circulated today just as in the slave era, strong rebellious men were humiliated to deter other black men from adopting truly masculine behaviour. All forms of sexual perversion, which included child abuse, rape, bestiality and homosexuality, emanated from Europeans and could be concisely described as “white sex”. Support for gay rights was being promoted internationally by countries such as the United States with a view to destroying black communities. Public figures who endorsed homosexuality either did not know what was going on, were being pressured to do so or were themselves involved in homosexual activity. Gambian President Jammeh (now former President) was held up as an example of a ‘real’ black leader by reference to a film clip in which he described homosexuality as “the detriment of human existence.” Former basketball star, Magic Johnson, was condemned and ridiculed for encouraging black parents to accept their gay children's alternative sexual...